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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

URSULA N. SMITH, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-534 

 Judge Graham 

 Magistrate Judge King 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

 This case sought review, under the provisions of 42 U.S.C. § 405(g), 

of a final decision of the Commissioner of Social Security denying 

plaintiff’s application for supplemental security income. On August 1, 

2013, this Court reversed the decision of the Commissioner and remanded 

the action to the Commissioner for further proceedings. Order, Doc. No. 

20. Final judgment pursuant to Sentence 4 of 42 U.S.C. § 405(g) was entered 

that same date. Judgment, Doc. No. 21. This matter is now before the Court 

for consideration of plaintiff Ursula N. Smith’s Application for Attorney 

Fees Under the Equal Access to Justice Act (“Plaintiff’s Motion”), Doc. 

No. 22. Plaintiff specifically seeks an award of $4,336.50 for 23.60 hours 

of work compensated at an average hourly rate of $183.75 per hour. 

Plaintiff’s Motion, p. 5, Exhibit A. The Commissioner has not filed a 

response to Plaintiff’s Motion. For the reasons that follow, it is 

RECOMMENDED that Plaintiff’s Motion be GRANTED. 

II. STANDARD

 The Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, authorizes 

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an award of fees incurred in connection with judicial proceedings: 

[A] court shall award to a prevailing party other than the United 

States fees and other expenses . . . incurred by that party in 

any civil action . . . including proceedings for judicial review 

of agency action, . . . unless the court finds that the position 

of the United States was substantially justified or that special 

circumstances make an award unjust. 

28 U.S.C. § 2412(d)(1)(A). In Commissioner, INS v. Jean, 496 U.S. 154 

(1990), the United States Supreme Court explained that, under the EAJA, 

eligibility for a fee award in any civil action requires: (1) 

that the claimant be a “prevailing party”; (2) that the 

Government’s position was not “substantially justified”; (3) 

that no “special circumstances make an award unjust”; and, (4) 

pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application 

be submitted to the court within 30 days of final judgment in 

the action and be supported by an itemized statement. 

Id. at 158. 

III. DISCUSSION

 This action was remanded to the Commissioner and final judgment was 

entered pursuant to Sentence 4 of 42 U.S.C. § 405(g) on August 1, 2013. 

See Order, Doc. No. 20; Judgment, Doc. No. 21. Plaintiff is a “prevailing 

party” under the EAJA because she received a Sentence 4 remand order. See 

Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993). Plaintiff’s Motion was 

also filed within 30 days of final judgment, as required under the EAJA. 

See 28 U.S.C. § 2412(d)(1)(B). 

Whether or not the Commissioner’s position was substantially 

justified is essentially a question of reasonableness. Sullivan v. 

Hudson, 490 U.S. 877, 883-85 (1989); Pierce v. Underwood, 487 U.S. 552, 

564-65 (1988). The position of an agency is “substantially justified” if 

it is “‘justified in substance or in the main’ – that is, justified to a 

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degree that would satisfy a reasonable person.” Underwood, 487 U.S. at 

565-66. An agency’s position can be substantially justified even if a 

court ultimately finds it erroneous or not supported by substantial 

evidence. See United States v. 2323 Charms Rd., 946 F.2d 437, 440 (6th 

Cir. 1991). The burden of showing substantial justification rests with 

the Commissioner. Scarborough v. Principi, 541 U.S. 401, 414 (2004); 

United States v. True, 250 F.3d 410, 419 n.7 (6th Cir. 2001). 

 In the case sub judice, the Court reversed the decision of the 

Commissioner and remanded the matter for further proceedings because the 

administrative law judge failed to satisfy his affirmative responsibility 

to inquire about conflicts between the vocational expert’s testimony and 

the Dictionary of Occupational Titles (“DOT”) pursuant to SSR 00-4p, 2000 

WL 1898704, at *4. See Order, Doc. No. 20; Report and Recommendation, Doc. 

No. 19, pp. 6-9. As the Court previously found, “[t]he only evidence in 

the record that supports the administrative law judge’s conclusion that 

plaintiff can perform other work is the vocational expert’s testimony.” 

Report and Recommendation, Doc. No. 19, p. 9 (citing PAGEID 74). However, 

“[t]he vocational expert’s testimony does not constitute substantial 

evidence because that testimony may not be consistent with the DOT and the 

administrative law judge failed to elicit a suitable explanation for that 

inconsistency.” Id. In short, the administrative law judge’s decision 

was not supported by substantial evidence and the administrative law 

judge’s failure to inquire about discrepancies with the DOT was not harmless 

error. Id. at p. 9. Indeed, the Commissioner does not argue that its position 

was substantially justified. The Court therefore concludes that the 

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position of the Commissioner was not substantially justified and that an 

award of fees under the EAJA is warranted. See True, 250 F.3d at 419 n.7 

(“[U]nder the EAJA it is the government’s burden to prove that its position 

was substantially justified.”). 

 Having determined that attorneys’ fees should be awarded under the 

EAJA, the Court must also determine what fee is reasonable. See 28 U.S.C. 

§ 2412(d)(2)(A); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (The 

plaintiff has the burden of proving that the fees requested under the EAJA 

are in fact reasonable.). Plaintiff seeks an award of attorneys’ fees in 

the amount of $4,336.50 for 23.60 hours of work compensated at an average 

hourly rate of $183.75 per hour. Plaintiff’s Motion, p. 5, Exhibit A. 

An award under the EAJA must be reasonable: 

The amount of fees awarded under this subsection shall be based 

upon prevailing market rates for the kind and quality of the 

services furnished, except that . . . attorney fees shall not 

be awarded in excess of $ 125 per hour unless the court 

determines that an increase in the cost of living or a special 

factor, such as the limited availability of qualified attorneys 

for the proceedings involved, justifies a higher fee. 

28 U.S.C. § 2412(d)(2)(A). The $125.00 “statutory rate is a ceiling and 

not a floor.” Chipman v. Sec’y of Health & Human Servs., 781 F.2d 545, 

547 (6th Cir. 1986). Therefore, a plaintiff bears the burden of providing 

evidence sufficient to support a request for an award calculated at a higher 

hourly rate. Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir. 

2009) (citing Blum v. Stenson, 465 U.S. 886, 898 (1984)). To meet this 

burden, a plaintiff must “‘produce satisfactory evidence – in addition to 

the attorney’s own affidavits – that the requested rates are in line with 

those prevailing in the community for similar services by lawyers of 

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reasonably comparable skill, experience, and reputation.” Id. (quoting 

Blum, 465 U.S. at 895 n.11). 

 Once the district court has examined the prevailing market rate, it 

must then consider whether a fee in excess of the $125.00 statutory cap 

is justified based on cost of living increases. 28 U.S.C. § 2412(d)(2)(A); 

Begley v. Sec’y of Health & Human Servs., 966 F.2d 196, 199-200 (6th Cir. 

1992). “[E]ven though the cost of living has risen since the enactment 

of the EAJA,” the decision whether or not to grant such an adjustment is 

left to the sound discretion of the district court. Id. at 199-200. 

Simply submitting the Department of Labor’s Consumer Price Index and 

arguing that the rate of inflation justifies an enhanced hourly rate does 

not warrant an increase in the rate. Bryant, 578 F.3d at 450. 

 In the case presently before the Court, plaintiff has submitted her 

attorney’s resume, the affidavit of Eileen S. Goodin, Esq., an exhibit 

computing the cost of living increase for EAJA awards since March 29, 1996 

using the Department of Labor’s Consumer Price Index, and a copy of The 

Economics of Law Practice in Ohio in support of the proposed hourly rate. 

The affidavit of Eileen S. Goodin, Esq., an attorney in Columbus, Ohio who 

has represented Social Security claimants in federal court, avers that an 

hourly rate ranging from “$160.98 to as high as $200 per hour” is 

representative “of the prevailing market rate for attorneys handling Social 

Security matters in federal court and are consistent with fees customarily 

charged in this locality for similar legal services in Social Security 

claims.” Affidavit, attached to Plaintiff’s Motion as Exhibit D, at p. 

1. Additionally, plaintiff has provided evidence that the mean billing 

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rate in 2010 for the Downtown Columbus area, where plaintiff’s attorney 

practices, is $266 per hour, the mean billing rate for trial attorneys is 

$244 an hour, and the mean billing rate in Ohio for attorneys with more 

than 15 years’ experience is $212 an hour. See The Economics of Law 

Practice in Ohio, attached to Plaintiff’s Motion as Exhibit E. Under the 

circumstances, the Court concludes that plaintiff has provided 

satisfactory evidence that the requested average hourly rate of $183.75 

is in line with the rates prevailing in the community for similar services 

by lawyers of reasonably comparable skill, experience and reputation. Cf. 

Delver v. Astrue, No. 1:06cv266, 2011 WL 4914963, at *3 n.2 (S.D. Ohio Sept. 

9, 2011) (suggesting a preference for “affidavits from other attorneys who 

practice in federal court,” “publications that discuss the prevailing 

market rate,” or “an affidavit from counsel setting forth . . . her normal 

hourly rate”). 

 The Court also concludes that the hours itemized by plaintiff’s 

counsel are reasonable. Notably, plaintiff’s counsel did not include time 

in connection with plaintiff’s requests for an extension of time and there 

is no indication that the time billed is improper or excessive. The Court 

therefore concludes that the hours itemized by plaintiff’s counsel are 

reasonable. 

For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Motion, 

Doc. No. 22, be GRANTED. It is FURTHER RECOMMENDED that plaintiff be 

AWARDED an attorney fee under the Equal Access to Justice Act in the amount 

of $4,336.50. 

 If any party seeks review by the District Judge of this Report and 

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Recommendation, that party may, within fourteen (14) days, file and serve 

on all parties objections to the Report and Recommendation, specifically 

designating this Report and Recommendation, and the part thereof in 

question, as well as the basis for objection thereto. 28 U.S.C. § 

636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed 

within fourteen (14) days after being served with a copy thereof. Fed. 

R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to the 

Report and Recommendation will result in a waiver of the right to de novo 

review by the District Judge and of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. 

Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 

231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 

947 (6th Cir. 1981). 

September 26, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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